Graybill v. Chi., M. & St. P. Ry. Co.

• Decision Date: 18 January 1901
• Citation: 112 Iowa 738,84 N.W. 946
• Court: Iowa Supreme Court
• Parties: GRAYBILL v. CHICAGO, M. & ST. P. RY. CO.

112 Iowa 738

84 N.W. 946

GRAYBILL

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Iowa.

Jan. 18, 1901.

Appeal from district court, Pottawattamie county; A. B. Thornell, Judge.

Action to recover the value of stock killed at a highway crossing. There was a trial to a jury, and a verdict and judgment for the plaintiff. The defendant appeals. Affirmed.J. C. Cook, for appellant.

Riley Clark and H. L. Robertson, for appellee.

SHERWIN, J.

The stock in question escaped from the plaintiff's inclosure, and were killed in the daytime, on a highway crossing, by a train running as a special. Negligence is charged, in the operation of the train, in not using due care and watchfulness, and in not using the whistle and bell before reaching the crossing where the cattle were killed. It is also charged that the train was a wild one, and was at the time being run at a dangerously high rate of speed. There is a sharp conflict in the evidence as to whether the whistle was sounded and the bell rung at the whistling post for that crossing, and as to when the first danger signals were in fact given. The court instructed the jury that the statutory requirement that the “whistle shall be twice sharply sounded at least 60 rods before a road crossing is reached, and after the sounding of the whistle the bell shall be rung continuously until the crossing is passed,” was for the safety of animals as well as persons, and that “a failure to give the signals required by this statute would be negligence on the part of the defendant; but, before such negligence would justify a recovery against the defendant, it must appear that if such signals had been given they would have prevented the cattle going on the track or frightened them away from the crossing.” The appellant urges that this instruction is erroneous, applied to the facts in this case. We do not understand the contention to be that no case can possibly arise in which the aid of the statute can be invoked to protect live stock, but the claim here is that nothing is shown which indicates that a strict compliance with the requirements of the statute would have so operated on the cattle as to have in any manner changed their action, and this, we think, must be conceded, so far as positive and direct evidence is concerned.

A failure to give these statutory signals when approaching a crossing makes railway companies absolutely “liable for all damages which shall be sustained by any person by reason of such neglect”; such failure is also made a misdemeanor. There is nothing in the language of the statute tending to show legislative intent to restrict its operation to the human family. It may be said, and indeed it has been held in two or three states, that the sole purpose of such legislation is to advise human beings of the approach of danger. But we think the reasons given for the decisions to which our attention has been called are not sound. They are based on the thought that all animal nature below man is incapable of intelligent action, and is not endowed with the sense of self-preservation or of fear. The contrary of these propositions we believe to be true. It is a matter of common observation that the attention of dumb animals is quickly attracted by any unusual noise, though at some distance, and that the approach of an unfamiliar object ordinarily holds the attention and arouses the instinct of fear and of self-preservation which all animal nature possesses. We think the statute must be construed in the light of this common knowledge, and that the legislature, by requiring this notice of the approach of trains, intended to protect as far as possible animals as well as man. This view finds support in Elliott, R. R. § 1206. In Shearman and Redfield on Negligence (5th Ed.), it is said: “Although the statutes requiring railroad companies to ring bells or sound whistles when approaching road crossings are not enacted with primary reference to cattle, yet property, as well as persons, is within their protection.” Section 427. In Orcutt v. Railway Co. (Cal.) 24 Pac. 661, the court construed a statute almost identical with ours, and held that the failure to give the statutory signals when approaching a road crossing amounted to presumptive negligence. A similar statute in Indiana was held to apply to animals in Railroad Co. v. Finn (...